R. v. Christian Date:, 2012 BCPC 191

Citation: R. v. Christian Date: 20120614 2012 BCPC 0191 File No: 22682 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Ban on publication pursuant to s.539 and s.486.4(2) CCC REGINA v. SETH JUSTIN CHRISTIAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. J. MROZINSKI Counsel for the Crown: S. Patola Counsel for the Defendant: B. Blakely Place of Hearing: Nelson , B.C. Date of Hearing: May 28, 2012

Date of Judgment: June 14, 2012 I. Introduction [ 1 ] Seth Justin Christian is charged that from the 5 th day of December, 2010 to the 9 th day of December 2010, inclusive, at or near Nelson, British Columbia, he did for a sexual purpose invite counsel or incite L.M., a person under age sixteen, to touch, directly or indirectly, with a part of his body, or with an object, the body of L.M., contrary to

section 152 of the Criminal Code . [ 2 ] The Crown has proceeded by indictment in this case and Mr. Christian has elected to proceed to trial by Supreme Court Judge alone. In this preliminary inquiry Mr. Christian challenges the sufficiency of the Crown’s case with respect to the question of identity. At issue is whether evidence tendered by the Crown as similar fact evidence to prove the identity of the accused is admissible. If not, Mr. Christian maintains there is insufficient evidence to commit him to trial. [ 3 ] For the reasons set out below, I order that Mr. Christian be committed to trial. II.

The evidence on the inquiry [ 4 ] In this preliminary inquiry the Crown led the evidence of the complainant, L.M., who testified by video from Australia where she and her family now reside. L.M. testified that on or about December 5, 2010, while she and her family were living here in Nelson, British Columbia, she was walking alone along [omitted for posting] on her way to her home on the [omitted for posting]. The time was somewhere between 7:30 and 8:30 pm.

L.M. was fourteen at the time and celebrated her sixteenth birthday last February 20, 2010. [ 5 ] It was dark outside but L.M. was near a street light when a vehicle drove slowly past her and a lone male, whom she described as being in his early to mid-twenties with short, dark hair and light skin, said to her from an open window “will you have sex with me”. L.M. said “no” and the male drove off. [ 6 ] L.M. described the vehicle as a light blue mini van, “almost like a teal blue.” She agreed in cross examination that it was light blue, almost silvery, but still teal.

L.M. also recalled during cross examination that she could not see seats in the back of the van. [ 7 ] L.M. reported the incident to police within twenty minutes of arriving at her home. A few days later, L.M. went to the local police detachment office and reviewed photographs put to her for the purpose of assisting police in identifying the male who had approached her that evening.

L.M. looked through the photographs and said the male looked like the persons in photograph numbers 4, 6, 7 and 8 but that he was not one of the persons in the photographs shown to her. [ 8 ] It is admitted in this preliminary hearing that Mr. Christian was one of the persons in the photo package shown to L.M., and that his face was shown in photograph number seven. [ 9 ] As identity is the central issue in this case, the Crown called J.M. for the purpose of giving similar fact evidence to establish the identity of the accused. Ms.

J.M., who was nineteen at the time of this hearing, testified that on December 4, 2010, she was working alone at a spa in the downtown area of Nelson just off of [omitted for posting]. [ 10 ] Ms. J.M. was by herself putting out the garbage in the alley way off of [omitted for posting] when a van approached her slowly. A lone male occupying the driver’s seat asked her for directions to [omitted for posting] which Ms. J.M. provided. He then said to her “I just have one more question – would you like to have sex with me?” Ms. J.M. said “no” and the male said “you’re sure, it would be fun”. Ms.

J.M. testified that she walked away and the male shouted at her to come back. She recalled the shouting got progressively more aggressive. [ 11 ] Ms. J.M. recalled that the male had an oddity about his speech, perhaps even a lisp. She recalled that he was in his early twenties. She recalled the van was a mini-van, “tealish” in colour, with a black accent on the door. It had no seats in the back. [ 12 ] Ms. J.M. also reported this incident to the police and subsequently attended at the police detachment office to review a photo package.

She was advised that a photograph of the person that propositioned her that evening might or might not be contained in the package. Ms. J.M. identified the person she thought had approached her as being shown in photograph number nine and, on a second review, in photograph number six. It is admitted for the purpose of this preliminary inquiry that Ms. J.M. twice identified photos of the accused, Mr. Christian. [ 13 ] Ms. J.M. agreed on cross examination that she said maybe the person was in photograph number one and maybe in photograph number three.

She then said, “definitely almost for sure” to photograph number nine but that she would have to look at the others “but that the male in photograph number nine looked really familiar.” On her second review, she admitted to saying, “I’m going to say out of all of them this guy looks the most.” Ms. J.M. was again referring to a photograph of the accused. III. The issue of admissibility [ 14 ] Mr. Christian objects to the admissibility of the evidence of Ms. J.M. on the basis that it does not meet the test for similar fact evidence. Mr.

Christian submits firstly that the differences in the evidence given by J.M. and L.M. regarding the incidents are so significant that the evidence fails to meet the test for similar fact evidence. Secondly it is submitted that, even if the incidents are found to have a high degree of similarity, the evidence is nonetheless still inadmissible as similar fact evidence because the Crown has not proven beyond a reasonable doubt that it was the accused who propositioned J.M. and L.M.

[15] The issue at this juncture is whether Ms. J.M.’s evidence is admissible as similar fact evidence and, if so, whether there issufficient evidence on which to commit Mr. Christian to trial. This in turn gives rise to questions regarding the role of the preliminaryinquiry judge in assessing evidence and in determining whether a committal is justified. That is because the admission of similar factevidence inevitably involves the weighing of some of the evidence in a manner usually reserved for the trier of fact. IV.

The role of the Preliminary Inquiry Judge [16] The test that must be applied by a preliminary inquiry judge in considering whether to commit an accused to trial is whetherthere is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para 21, Chief Justice McLachlin cited with approval the reasons of Ritchie J. in United States ofAmerica v.

Shephard, (SCC), [1976] SCJ No. 106, that a judge “is... required to commit an accused person for trial in anycase in which there is admissible evidence which could, if it were believed, result in a conviction.” [17] At para 22 of Arcuri, the Court also confirmed that the test is the same “whether the evidence is direct or circumstantial”. However, the nature of the court’s task differs depending on whether the evidence is direct or circumstantial.

Where it is direct, “theonly conclusion that needs to be reached …is whether the evidence is true…” To this the Court added that it is for the jury to decidewhether and how far the evidence is to be believed. The only question for the judge is whether the Crown has presented direct evidenceas to every element of the charge. If so, the accused must be committed to trial. [18] It is only in the case of circumstantial evidence that the question of weight arises.

Even here, the Court in Arcuri makes clearthat the role of the judge is limited: The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence.The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has notadvanced direct evidence -- may reasonably be inferred from the circumstantial evidence. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences thatthe Crown asks the jury to draw.

This weighing, however, is limited. The judge does not ask whether she herself would conclude that theaccused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks ... only whether the evidence, ifbelieved, could reasonably support an inference of guilt. [19] In this case, the first question is one of the admissibility of evidence. It is clear from the ruling in Arcuri that preliminaryinquiry judges must consider questions of admissibility. Though there are no cases directly on point, it may be fair to infer from thereasons in R. v.

Ross, (BC SC), [1979] 6 W.W.R. 435 (BCSC), and R. v. Ross, (BC CA), [1980] 5W.W.R. 261 (BCCA), that a preliminary inquiry judge may consider not only the admissibility of statements given voluntarily, but alsothe admissibility of similar fact evidence. In R. v. Ross the preliminary inquiry judge admitted similar fact evidence and his reasoning fordoing so was commented on at both the Supreme Court and Court of Appeal level with no concern as to whether or not he ought to haveconsidered the question of admissibility. [20] Assuming, as I do that it is open to this court to consider whether Ms.

J.M.’s evidence is admissible, it remains to bedetermined whether it meets the test for similar fact evidence. V. The test for the admission of similar fact evidence [21] The suggested approach for the admission of similar fact evidence in order to prove identity is set out in R. v. Arp, (SCC), [1998] 3 SCR 339 at para 50 reproduced below for convenient reference. Although this test is one that must beapplied by the trial judge, I see no reason why the same test for admissibility ought not to be applied by a preliminary inquiry judge: 50. In

summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determinewhether the probative value of the evidence outweighs its prejudicial effect. In most cases where similar fact evidence is adduced toprove identity it might be helpful for the trial judge to consider the following suggestions in deciding whether to admit the evidence:

(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order toensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. Thesimilarity between the acts may consist of a unique trademark or signature on a series of significant similarities. [My emphasis]

(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not theevidence as to the accused’s involvement in each act.

(3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that theywere committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh itsprejudicial effect and may be admitted.

(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for anyone act. [22] As the Court acknowledged at para. 47 of Arp, in assessing whether the proffered evidence may be admitted as similar factevidence, the court must of necessity engage in some weighing of the evidence. It must, as the court notes at para 48 of Arp, “evaluate

the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted.” [ 23 ] In assessing the “similarity of the instance” as Wigmore put it, the courts have suggested a number of factors that may be taken into consideration including, but not limited to, proximity in time of the incidents, similarity in detail and circumstances, number of occurrences, any distinctive features, intervening events, and other factors such as the opportunity for collusion: R. v. Handy , [2002] SCC 56 at para 82. (

a) The “incidents” in issue [ 24 ] In this case, Mr. Christian submits that there are more differences than similarities between the incidents described by L.M. and J.M. such that there is no improbability of coincidence. Counsel points to the differences in each of the witnesses’ evidence regarding their observations of the male’s age, hair length, and skin colour. Counsel notes also that Ms. J.M. detected a lisp as the male spoke to her while L.M. detected no oddities in the speech of the male with whom she spoke. Ms.

J.M. offered a more detailed description of the male including what she observed to be his wide facial features. [ 25 ] In my view, these matters go to the identification of the accused as the person involved in both acts.

However, the first part of the test for the admission of similar fact evidence requires the court to consider the act as distinct from the evidence of the accused’s involvement in the act. [ 26 ] The act at issue in each of the instances testified to by L.M. and J.M. is this: in the early evening on or about December 4 th and 5 th , a mini van driven by a lone male approached a lone, young woman on the street in the dark and propositioned the woman for sex. While the comments varied slightly, in both cases the male asked the woman to have sex with him.

In both cases, the witnesses described the van as being tealish in colour or almost teal blue, and in both instances the witnesses recalled that the van had no visible back seats.

The incidents took place within a day of one another in the downtown area of Nelson. [ 27 ] How likely is it that within a span of one day or so, two different lone males would be driving a teal coloured mini van with no back seat around the downtown area of Nelson in early December approaching lone, young women in the dark and propositioning them for sex? [ 28 ] While the City of Nelson has its share of crime, I find I cannot take judicial notice of the fact that this kind of conduct is so common in this small town that one could not safely conclude that the incidents are so similar and so unusual that it is likely they were committed by the same person.

To the contrary, I find the acts as described by the witnesses to be strikingly similar such that I find it likely they were committed by the same person. They are close together in time and place. They involve a vehicle so similarly described with two unique features (being the teal colour and the missing back seats) that it is improbable there would be two such vehicles having those same features in a city this size. To this must be added the approach to lone, young women under cover of darkness and the propositioning for sex.

The similarities between these two incidents are simply too striking to ignore. [ 29 ] To this I would add that though both women were young at the time (and are still), L.M. is much younger than J.M. At the time of testifying, she was only sixteen years of age. There is nothing in the evidence to suggest the two knew one another much less colluded on their evidence. [ 30 ] Finally, counsel for Mr. Christian suggested that there is nothing unique about men propositioning women for sex from their vehicles so that this case holds no unique or signature features.

In this regard, I would note firstly that to be admissible similar fact evidence need not contain unique or signature features. Rather such features, were they present, would render the evidence strikingly similar. However, as I say, I am not so convinced that this is such a common a practice that this court can safely assume any male driver in this city would conduct themselves in this manner in regard to a young woman walking alone at night. (

b) The evidence linking the accused to the “similar acts” [ 31 ] In my view, the first part of the test for the admission of similar fact evidence has been met in this case in that I find a high degree of similarity between the two incidents such that the probative value of that evidence outweighs any prejudice to the accused. The second part of the test requires that the evidence establish a link between the accused and the alleged similar acts. The degree of evidence necessary to establish that link is set out by the SCC in R. v.

Arp at para 56 as follows: The suggestion that the evidence linking the accused to the similar acts must also link the acts to the accused goes too far. Once the trial judge has concluded that the similar acts were likely the work of one person and that there is some evidence linking the accused to the alleged similar acts, it is not necessary to conclude that the similar acts were likely committed by the accused. The answer to this question may well determine guilt or innocence.

This is the very question which the trier of fact must determine on the basis of all the evidence related to the similar acts, including of course the accused’s involvement in each act. The standard set out in Sweitzer should be maintained. This only requires that the trial judge be satisfied that there is some evidence which links the accused to the similar acts. [ 32 ] Mr.

Christian submits that the frailties in the identification evidence of both L.M. and J.M. are such that there is no evidence on which a jury properly instructed and acting reasonably could find him guilty of the offence under which he has been charged in this case. [ 33 ] First, counsel points to the differences in the witnesses’ evidence of the male. L.M. described the male as having pale skin, with short, dark hair and in his early to mid twenties. She said nothing of him having a lisp. Ms.

J.M. thought the male was in his early twenties with dark spiky hair which she described as long. [ 34 ] In my view, these details go to the weight of the evidence as do any frailties in Ms. J.M.’s identification of the accused at the photo line up. While a preliminary inquiry judge must weigh evidence to determine the admissibility of similar fact evidence, it is limited to weighing the similarities of the acts. In determining whether there is a link between the acts most likely committed by the

same person and the accused, the court must determine whether there is some evidence linking the two. That in turn does not require a similar weighing of the evidence. VI. Conclusion [ 35 ] In this case, there is some evidence linking the accused to the incidents described by J.M. and L.M. There is the identification of the accused by Ms. J.M., and some similarities in the description of the lone male by both L.M. and J.M.

It will be up to a jury to determine what weight this evidence carries and whether it can infer on all the evidence that it was the accused who propositioned L.M. on or about December 5, 2010 contrary to s. 152 of the Criminal Code as charged. [ 36 ] In light of the above, I find that the evidence of Ms. J.M. is admissible in this preliminary inquiry as similar fact evidence. I find also based on these reasons that there is evidence upon which a properly instructed jury acting reasonably could return a verdict of guilty. As such, pursuant to s. 548(1) (

a) of the Criminal Code Mr. Christian must stand trial on the charge that from the 5 th day of December, 2010 to the 9 th day of December 2010, inclusive, he did for a sexual purpose invite counsel or incite L.M., a person under age sixteen, to touch, directly or indirectly, with a part of his body, or with an object, the body of L.M., contrary to

section 152 of the Criminal Code . [ 37 ] The package of photographs reviewed by Ms. J.M. was entered as Exhibit “A” in the voir dire . It will now be entered as Exhibit 2 in the preliminary inquiry. [ 38 ] Mr. Christian is remanded to the British Columbia Supreme Court chambers on June 18, 2012 to fix a date for his trial. ________________________________ The Honourable Judge L.J. Mrozinski